Supreme Court shows a little impartiality

 Bill Knight column for 3-1, 2 or 3, 2021

 The U.S. Supreme Court last week cleared the way for a New York prosecutor to get former Donald Trump's tax returns, essentially ending the ex-President’s years-long fight to keep his financial records secret. Issued without comment (much less a dissent) the ruling received considerable attention.

However, exactly four weeks before, there was much less notice when the Justices foreshadowed such impartiality, if not independence, by rejecting a case that sought to require the American Federation of State, County and Municipal Employees (AFCSME) and other public-sector unions to reimburse workers they represent if those workers chose to not become members, instead paying mandatory “fair share” fees.

Such fees were the standard for decades, covering unions’ costs of representing workers, such as negotiating and enforcing collective bargaining agreements – even if membership was declined.

However, the Supreme Court in 2018 ruled in “Janus v. AFSCME 31” that those fees inhibited free speech and therefore were unconstitutional.

Both lawsuits were brought by Mark Janus, a former child support specialist for the state of Illinois.

In Janus’s recent lawsuit, he’d claimed that after his 2018 court victory, he and other nonmembers should be entitled to receive refunds of fees they’d paid to their public-employee union.

His petition to the Supreme Court came after the suit was dismissed twice, in a federal district court and appeals court. Both of those courts’ judges ruled that the unions didn’t owe that money because the unions had acted in good faith – the fees were constitutional at the time under both federal and state law.

The federal court for the Northern District of Illinois last March 19 ruled in a summary judgment for AFSCME, and on Nov. 19, the U.S. Court of Appeals for the Seventh Circuit concurred, explaining that until ‘Janus’ was decided in 2018, public-sector unions “had a legal right to receive and spend fair-share fees collected from nonmembers as long as it complied with state law and the [1977, precedent-setting] ‘Abood v. Detroit Board of Education’ line of cases.”

Labor unions, the Seventh Circuit said, have an obligation to follow “what the law is, rather than what the readers of tea-leaves predict that it might be in the future.”

The judges from the Seventh added, “It is not true, as Mr. Janus charges, that this [good-faith] defense will be available to ‘every defendant that deprives any person of any constitutional right.’ We predict that only rarely will a party successfully claim to have relied substantially and in good faith on both a state statute and unambiguous Supreme Court precedent validating that statute.”

The Court’s January decision to reject this suit and related cases suggests that, even the 6-3 Republican majority thinks the high court has sufficiently blocked unions from collecting fees that conservative Justices deem unconstitutional.

AFSCME Council 31 spokesman Anders Lindall said that the Supreme Court's refusal to hear the lawsuit and similar cases is good news for everyday workers and organized labor – and bad news for corporate interests.

“Despite the efforts of anti-worker groups to weaken workers' voice through incessant litigation, courts have repeatedly ruled in these cases that unions acted in good faith and followed the law in setting fees for representation provided to nonmembers prior to the [2018] decision,” Lindall said.

Janus’ legal team is made up of people from groups with histories of attacking labor, including the National Right to Work Legal Defense Foundation, headquartered in Virginia, and the Liberty Justice Center, a Chicago-based nonprofit tied to the conservative Illinois Policy Institute and funded by Right-wing groups including the Charles Koch Institute and the Lynde and Harry Bradley Foundation, according to the Center for Media and Democracy.

Janus is now employed by the Liberty Justice Center.

Another case related to Janus and his anti-union supporters seems to be active at press time. The 2018 suit “Wholean v. Connecticut State Employees Association/ SEIU Local 2001,” like the case Janus lost in January, says workers covered by a union contract who decided not to be members should get reimbursed for past fee payments. In April, a three-judge panel of the U.S. Court of Appeals for the Second Circuit rejected two Connecticut state employees’ attempt to get refunds. The anti-union side was supposed to file by Feb. 22 a response.